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CONTRACT# AIR/17-012

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DESIGN/BUILD CONTRACT FOR GENERAL AVIATION TERMINAL BUILDING

This DESIGN/BUILD CONTRACT (the “Contract”) is made and entered into by and between the

CITY OF OCALA, a Florida municipal corporation (the “Owner”) and COMPANY NAME, a

Florida registered corporation/limited liability company, (EIN# __-___________) with its principal

place of business at __________________, City, State, ZIP (the “Design/Builder”).

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated

herein, and for other good and valuable consideration, the sufficiency of which is hereby

acknowledged, Owner and Design/Builder agree as follows:

ARTICLE 1

THE CONTRACT AND THE CONTRACT DOCUMENTS

(A) The Contract: The Contract between Design/Builder and Owner consists of this

document and the other Contract Documents described in Paragraph 1(B). The Contract shall

be effective as of , 2018, the date of its approval, and that date shall also be considered

the execution date of this Contract.

(B) The Contract Documents: The Contract Documents consist of this document, the

preliminary Design Scope Specification, set forth as Exhibit A, the Design/Builder’s Submitted

Proposal, dated ____________, and Presentation dated __________ set forth as Exhibit B, Concept

Drawings dated _____________ set forth as Exhibit C, Design and Construction Schedule set

forth as Exhibit D, all Design Documents hereafter prepared by Design/Builder and approved

by Owner in accordance with this Contract, the City of Ocala “General Conditions for

Construction”, Volume I, “Standard Specifications for Water and Sewer Construction”, Volume

III, latest edition of FDOT Standard Specifications for Road and Bridge Construction, along

with any special provisions added thereto with the consent of Owner. The General Conditions

for Construction and Water and Sewer Specifications are deemed to be a part of this Contract

by reference, and shall be included as general provisions for use with Design Documents

prepared by Design/Builder, Change Orders and Field Orders issued hereafter, along with any

other written amendments executed by Owner and Design/Builder, as well as the following

documents (if any): all of which are hereby incorporated herein by reference and made a part

of this Contract.


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(C) Enumerated Documents Form Entire Contract: Documents not specifically enumerated

in Paragraph 1(B) of this Agreement are not Contract Documents.

(D) Contract Interpreted as a Whole: This Contract is intended to be an integral whole and

shall be interpreted as internally consistent. Work required by any page, part, or portion of

the Contract shall be deemed to be required Contract Work as if called for in the whole

Contract and no claim for extra work shall be based upon the fact that the description of the

Work in question is incomplete.

(E) Provision of All Things Required: Anything that may be required, implied or inferred

by the Contract Documents which make up this Contract, or any one or more of them, shall

be provided by Design/Builder for the Contract Price.

(F) Privity Only with Design/Builder: Nothing contained in this Contract shall create, nor

be interpreted to create, privity or any other relationship whatsoever between Owner and any

person except Design/Builder.

(G) Agreed Interpretation of Contract Terms: When a word, term, or phrase is used in this

Contract, it shall be interpreted or construed first, as defined herein; second, if not defined,

according to its generally accepted meaning in the construction industry; and third, if there is

no generally accepted meaning in the construction industry, according to its common and

customary usage. Headings are used herein solely for convenience.

(H) Term “Include” Intended to Be Encompassing: “Include”, “includes”, or “including”, as

used in the Contract, shall be deemed in all cases to be followed by the phrase, “without

limitation.”

(I) Use of Singular and Plural: Words or terms used as nouns in the Contract shall be

inclusive of their singular and plural forms, unless the context of their usage clearly requires

a contrary meaning.

(J) Definition of Material Breaches Not Exhaustive: The specification herein of any act,

failure, refusal, omission, event, occurrence or condition as constituting a material breach of

the Contract shall not imply that any other, non-specified act, failure, refusal, omission, event,

occurrence or condition shall be deemed not to constitute a material breach of the Contract.


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(K) Order of Precedence: In the event of any conflict, discrepancy, or inconsistency among

any of the Contract Documents which make up this Contract, the following shall control:

(1) As between figures given on plans and scaled measurements, the figures shall

govern.

(2) As between large scale plans and small scale plans, the large scale plans shall

govern.

(3) As between plans and specifications, the requirements of the specifications shall

govern.

(4) As between this document and the plans or specifications, this document shall

govern.

(L) Administration: This Contract shall be administered on behalf of Owner by the City

Engineer, or their designee (hereinafter called the “Director”), and on behalf of the

Design/Builder, by its duly authorized representatives.

ARTICLE 2

DESIGN/BUILDER’S REPRESENTATIONS

(A) Specific Representations: In order to induce Owner to execute this Agreement and

recognizing that Owner is relying thereon, Design/Builder, by executing this Agreement, and

without superseding, limiting, or restricting any other representation or warranty set forth

elsewhere in the Contract Documents, or implied by operation of law, makes the following

express representations to Owner: Design/Builder is professionally and fully qualified to act

as the design professional and the general contractor for the Project and is, and will remain,

licensed to practice engineering and architecture and general contracting in the State of

Florida and by all public entities having jurisdiction over Design/Builder or the Project;

(1) Design/Builder will maintain all necessary licenses, permits or other

authorizations necessary to act as Design/Builder for the Project until Design/Builder's

duties under this Contract have been fully satisfied;

(2) Design/Builder has the expertise, experience, and knowledge as well as the

necessary plant, personnel and financial capability to perform the Design Services and

the Work in accordance with the terms of this Contract;


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(3) Prior to the execution of this Contract, Design/Builder has visited and inspected

the Project site and the local conditions under which the Project is to be designed,

constructed and operated, and Design/Builder has performed such tests, if any, as are

necessary to determine the conditions under which the Work will be performed, and

Design/Builder accepts the conditions of the Work site and has taken those conditions

into account in entering into this Contract;

(4) Design/Builder assumes full responsibility to Owner for the improper acts and

omissions of its Subcontractors or others employed or retained by Design/Builder in

connection with the Project.

ARTICLE 3

REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS

(A) Generally: Design/Builder shall perform all Design Services described in, contemplated

by, inferable from, or necessary or desirable to achieve the objectives stated in the Design

Scope Specification, and the Contract, including all Design Services necessary for the Project

to be properly constructed by Design/Builder and used, operated and maintained by Owner

in accordance with all applicable guidelines, requirements and standards. “Design Services”

means any and all architectural, engineering and design services required to be performed by

Design/Builder pursuant to the Contract and all labor, materials, supervision, equipment,

computers, documents, and all other things necessary for the performance of such services.

“Design Scope Specification” means the document prepared by Owner and named

”______________,” which specifies the general scope of the Design Services to be performed by

Design/Builder under the Contract. A copy of the Design Scope Specification is attached

hereto as Exhibit A, and is incorporated into this Contract by reference. The Design Services

shall be performed within the time provided by the Design Schedule for the performance of

Design/Builder's Design Services as provided in Paragraph 3(H) of this Agreement.

(B) Owner's Review of Design Services: Subject to Paragraph 13(G) of this Agreement,

Design/Builder shall submit all documents produced as part of the Design Services to the

Director for review and approval in accordance with the terms of the Contract. However, any

review or approval by the Director shall not relieve Design/Builder of or otherwise diminish

its obligations under the Contract. The Director may direct Design/Builder to make changes

to any design documents in order to conform the documents to the Owner's objectives. Any


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changes by Design/Builder ordered by the Director shall not relieve Design/Builder of its

obligations under this Contract unless, and only to the extent that, Design/Builder notifies

Owner in writing, within seven (7) days after receipt of Owner's directive to make changes,

concerning any adverse impact on schedules, budgets, operational costs, operational

performance, satisfaction of regulatory requirements, or other adverse impact that may result

from the directed changes. Failure of Design/Builder to submit its notice within the seven (7)

day period constitutes a waiver by Design/Builder of any claim for an adjustment to the Design

Schedule or the Contract Time.

(C) Preparation of Site Information: Design/Builder shall prepare, as necessary, surveys and

topographic information including aerial photographs needed to establish line and grade of

sewers, location of property lines and easements. Sewer easements, both construction and

permanent, shall be referenced to property lines by field surveys, and plans shall include the

location of any improvement as it relates to property lines. Owner will provide survey for

control and existing site features prior to design and base map information including existing

conditions and features in AutoCAD format, along with estimated location of existing utilities

known to Owner. Owner expressly does not warrant any information provided by it in

connection with preparation of the above-mentioned information; Design/Builder,

however, may reasonably rely on information provided by Owner to the extent the information

has been prepared by Owner or an independent consultant hired by Owner to prepare the

information specifically for this Project, without absolving Design/Builder from its responsibility

to independently verify or investigate information that a reasonable, prudent professional

architect or engineer should or would inquire about.

(D) Retention of Geotechnical Consultants: In preparing the Design Documents,

Design/Builder shall separately retain an experienced, qualified geotechnical consultant to

evaluate all geotechnical considerations relating to the design and construction of the Project.

Design/ Builder shall be responsible for designing the Project in accordance with the analysis

and recommendations of the geotechnical consultant. Nothing in this paragraph, however,

prevents Owner from retaining its own geotechnical consultant to review design work, raise

issues for mutual discussion, and obtain further information in connection with the

geotechnical nature of the Project. Owner expressly does not warrant any geotechnical

information provided by it for use in connection with preparation of the design

documents; Design/Builder, however, may reasonably rely on any geotechnical information


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provided by Owner to the extent the information has been prepared by Owner or an

independent consultant hired by Owner to prepare the information specifically for this Project,

without absolving Design/Builder from its responsibility to independently verify or investigate

information that a reasonable, prudent professional architect or engineer should or would

inquire about.

(E) Quality of Design Services: Design/Builder shall be responsible for the professional

quality, completeness, accuracy, and coordination of Design Documents. Design/Builder shall

provide Design Services that will result in an operationally cost-efficient and economical facility

that meets all environmental and regulatory requirements as of the date hereof, and uses the

most appropriate available technology. Design/Builder shall provide for all quality control

reviews required by sound professional architectural and engineering practices and by

governmental authorities having jurisdiction over the Project.

(F) Compliance with Laws and Regulatory Requirements: In providing Design Services,

Design/Builder shall comply with the lawful requirements of all federal, state, and local

authorities having lawful jurisdiction over the Project. Design/Builder shall design the Project

to meet all applicable requirements of building control laws and regulations in relation to the

design, construction, occupation, and operation of the Project, including, without limitation,

environmental standards, fire and safety regulations, and requirements and compliance with

all other applicable standards and codes.

(G) Duty to Correct Errors: Design/Builder shall, without additional compensation,

immediately correct any errors, omissions or deficiencies in its Design Services and Design

Documents.

(H) Schedule of Design Services and Permitting: Design/Builder shall begin design

immediately after execution of the Contract. The Design Schedule is expected to last

______days, but in no case will extend beyond _____________, 2018. Permitting will be completed

no later than ________________, 2018. The Design Schedule shall not, except for good cause, be

exceeded by Design/Builder.


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Design and Permit Schedule Milestones

Preliminary Design Submittal XX/XX/2018

Final Design Submittal XX/XX/2018

Design Development Drawings XX/XX/2018

Permits Submitted XX/XX/2018

Permitting Completed XX/XX/2018

Should Design/Builder at any time during the course of performing the Contract, have reason

to believe that it will be unable to meet any completion date in accordance with the Design

Schedule, it shall immediately notify the Director in writing. Design/Builder shall state the

reason for the delay in the notice, including the party responsible, if any, and the steps being

taken to remedy or minimize the impact of the delay. Failure of Design/Builder to submit

such notice shall constitute a waiver by Design/Builder of any claim for an adjustment to

the Contract Price, the Design Schedule, or the Contract Time. All extensions of time shall

be governed by Articles 16 and 17 of this Agreement. Subject to the provisions of Paragraph

13(G) of this Agreement, Owner shall review and approve, where appropriate, the Design

Schedule, or any portion thereof.

ARTICLE 4

PRELIMINARY CONSULTATION AND PROJECT ANALYSIS

(A) Determining the Project Objectives: Prior to the preparation of the Preliminary Design

as required by Article 5, Design/Builder shall first consult in detail with Owner, and shall

carefully analyze any information furnished by Owner concerning requirements of the Project,

including but not limited to, any design, construction, scheduling, budgetary or operational

requirements, limitations, and objectives, as well as the Design Scope Specification.

(B) Report on Project Requirements and Objectives: Based on its study and analysis, and

no later than sixty (60) days after the effective date of the Contract, Design/Builder shall

prepare and submit to Owner a written report detailing Design/Builder's understanding and

analysis of the Project requirements and identifying any design, construction, scheduling,

budgetary, operational, or other problems which may result from said requirements. The

written report of Design/Builder shall also include proposed solutions, including design

alternatives if appropriate, addressing each of the identified problems. Design/Builder shall


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review such report with Owner and shall implement such changes as Owner may require as

provided in Paragraph 3(B) of this Contract.

(C) Scheduling: Based upon the Design/Builder recommendation that the Project Schedule

should be “fast tracked” for the Design Phase, Owner agrees to review the proposed plan of

action promptly. The proposed schedule should include sufficient budget allowances in

anticipation of currently unknown refinements of budgets that may become necessary and in

order to control Project costs.

ARTICLE 5

PRELIMINARY DESIGN

(A) Time for Preliminary Design: Not later than the date called for in the Design Schedule,

Design/Builder shall prepare and submit to the Director a Preliminary Design for the Project.

(B) Contents of Preliminary Design: The Preliminary Design shall address all requirements

of the Project and shall include, without limitation, the following:

(1) preliminary drawings which illustrate each of the basic components of the

Project including the size, scale, location, dimensions, and character of each building

structure;

(2) preliminary drawings which illustrate each exterior view of the Project;

(3) preliminary drawings which illustrate the layout and functional area of the

Project and the dimensions thereof;

(4) preliminary drawings and specifications illustrating and describing the

architectural, electrical, mechanical, structural, and manufacturing systems of the

Project;

(5) a written description of the materials and equipment to be incorporated into

the Project and the location of same; and

(6) any other documents or things required to illustrate, describe or depict the

Preliminary Design and the conformity of same with the requirements of the Design

Scope Specification and this Contract.

(C) To Be Reviewed with Owner: Design/Builder shall review the Preliminary Design with


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the Director and shall incorporate any changes ordered by the Director in regard to the

Preliminary Design or the requirements of the Project.

(D) Authorization to Proceed with Detailed Design: After review of the Preliminary Design

and incorporation of any changes ordered by the Director, the Director shall authorize

Design/Builder in writing to commence preparing the Detailed Design, or such part thereof

as directed by the Director.

ARTICLE 6

DETAILED DESIGN

(A) Time for Preparation: Not later than the date called for in the Design Schedule, after

the Director has authorized Design/Builder to commence with the Detailed Design as provided

in Paragraph 5(D) above, Design/Builder shall prepare and submit to the Director the complete

Detailed Design.

(B) The Detailed Design: The Detailed Design shall include all Design Documents which

shall describe with specificity all elements, details, components, materials, and other

information necessary for the complete construction of the Project and the rendering of the

Project fully operational for its intended purposes, including satisfaction of all testing,

permitting, qualifications, certifications, validations, and obtaining regulatory approvals by all

applicable regulatory authorities required to render the Project and all its components

operational and functionally and legally usable for their intended purpose. Subject to the

provisions of Paragraph 13(G) of this Agreement, Owner shall review and approve, where

appropriate, the Design Documents, or any portion thereof.

(C) Design Documents: Design Documents means all the design documents provided by

Design/Builder and approved by Owner pursuant to the Contract including, without limitation,

those for use in constructing the Project, performing the Work, and the rendering of the

Project fully operational, and shall include, without limitation, detailed plans, drawings,

specifications, manuals, and related materials prepared by or on behalf of Design/Builder.

(D) Guaranteed Maximum Price Includes Detailed Design: The Guaranteed Maximum Price,

as set forth in Article 10, shall include the cost of constructing the Project Work in strict

accordance with the requirements of the Detailed Design.


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ARTICLE 7

CONSTRUCTION SERVICES

(A) General Intent: Design/Builder shall perform all Work necessary to construct the Project

in accordance with this Contract, and to render the Project and all its components operational

and functionally and legally usable for their intended purpose.

(B) Work Defined: The term “Work” shall mean whatever is done by or required of

Design/Builder to perform and complete its duties relating to the construction of the Project

under the Contract, including, without limitation, the following:

(1) construction of the whole and all parts of the Project in full and strict conformity

with this Contract;

(2) the provision and furnishing, and prompt payment therefor, of all labor,

supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools,

transportation, storage, power, fuel, heat, light, cooling, other utilities and things

required for the construction of the Project;

(3) the procurement and furnishing of all necessary building permits and other

permits required for the construction of the Project;

(4) the creation and submission to Owner of detailed as-built drawings depicting

all as-built construction;

(5) the furnishing of any required surety bonds and insurance as required by the

Contract;

(6) the furnishing of all equipment and product warranties, manuals, test results

and user guides required by the Contract or otherwise reasonably available to

Design/Builder; and

(7) the furnishing of all other services and things required or reasonably inferable

from the Contract Documents, including the provisions of Article 9 below.


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ARTICLE 8

TIME FOR CONSTRUCTION: THE CONTRACT TIME

(A) Notice of Commencement: After Owner has approved the Design Documents for the

Detailed Design, Owner shall issue a notice to commence the Work directing Design/Builder

to proceed with the Work on the date indicated in the notice (the “Commencement Date”).

The notice to commence Work shall be issued at least ten (10) days prior to the

Commencement Date.

(B) Time for Completion: Design/Builder shall commence the Construction Work on the

Commencement Date, and the Work shall be carried out regularly and without interruption.

Design/Builder shall substantially complete the Work not later than ___ days after the

Commencement Date, or such other date as may by Change Order be designated (the

“Scheduled Completion Date”). The number of calendar days between the effective date of

the Contract and the Scheduled Completion Date is the “Contract Time.” Design/Builder shall

achieve Final Completion of the Work no later than thirty (30) calendar days after achieving

Substantial Completion.

Expected Construction Schedule Milestones

Notice of Commencement XX/XX/2018

Pre-Construction Meeting and Construction Start XX/XX/2018

Substantial Completion XX/XX/2018

Public Dedication XX/XX/2018

(C) Liquidated Damages For Delay In Substantial Completion: Design/Builder shall pay

Owner the sum of Three Thousand, Six Hundred, and Forty-Five Dollars ($3,645.00) per day

for each and every calendar day of unexcused delay in achieving Substantial Completion

beyond the Scheduled Completion Date. Any sums due and payable hereunder by

Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an

estimate of delay damages likely to be sustained by Owner, estimated at the time of executing

this Agreement. Such liquidated damages shall apply regardless of whether Design/Builder

has been terminated by Owner prior to Substantial Completion so long as Design/Builder's

actions or inactions contributed to the delay. Such liquidated damages shall be in addition to

and not in preclusion of the recovery of actual damages resulting from other defects in


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Design/Builder's performance hereunder for matters other than delays in Substantial

Completion. When Owner reasonably believes that Substantial Completion will be inexcusably

delayed, Owner shall be entitled, but not required, to withhold from any amounts otherwise

due to Design/Builder an amount then believed by Owner to be adequate to recover

liquidated damages applicable to such delays. If and when Design/Builder overcomes the

delay in achieving Substantial Completion, or any part thereof, for which Owner has withheld

payment, Owner shall promptly release to Design/Builder those funds withheld, but no longer

applicable as liquidated damages.

(D) Liquidated Damages For Delay In Final Completion: If Design/Builder fails to achieve

Final Completion within thirty (30) calendar days after the date of Substantial Completion,

Design/Builder shall pay Owner the sum of Two Hundred Dollars ($200.00) per day for each

and every calendar day of unexcused delay in achieving Final Completion beyond the date

set forth herein for Final Completion of the Work. Any sums due and payable hereunder by

Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an

estimate of delay damages likely to be sustained by Owner, estimated at the time of executing

this Agreement. Liquidated damages shall apply regardless of whether Design/Builder has

been terminated by Owner prior to Final Completion so long as Design/Builder's actions or

inactions contributed to the delay. Such liquidated damages shall be in addition to and not

in preclusion of the recovery of actual damages resulting from other defects in

Design/Builder's performance hereunder for matters other than delays in Final Completion.

When Owner reasonably believes that Final Completion will be inexcusably delayed, Owner

shall be entitled, but not required, to withhold from any amounts otherwise due to

Design/Builder an amount then believed by Owner to be adequate to recover liquidated

damages applicable to such delays. If and when Design/Builder overcomes the delay in

achieving Final Completion, or any part thereof, for which Owner has withheld payment, Owner

shall promptly release to Design/Builder those funds withheld, but no longer applicable as

liquidated damages.

(E) Time Is of the Essence: All limitations of time set forth in this Contract are material and

time is of the essence of the Contract.


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ARTICLE 9

ADDITIONAL DUTIES AND RESPONSIBILITIES OF DESIGN/BUILDER

(A) Design/Builder to Perform All Work Required by the Contract: The intent of this

Contract is to require complete, correct and timely execution of the design and the

Construction Work. Any and all Construction Work that may be required, reasonably implied,

or reasonably inferred by the Contract, or any part of it, as necessary to produce the intended

result shall be provided by Design/Builder for the Guaranteed Maximum Price as provided in

Article 10 of this Contract.

(B) Strict Compliance with The Contract Documents: All Construction Work performed by

Design/Builder shall be in strict compliance with this Contract. “Substantial compliance” is not

strict compliance. Any Construction Work not in strict compliance with the Contract is

defective.

(C) Supervision of The Construction Work: The Construction Work shall be strictly

supervised and directed using Design/Builder's best and highest skill and effort. Design/Builder

shall bear full responsibility for any and all acts or omissions of those engaged in the

Construction Work on behalf of Design/Builder.

(D) Warranty of Construction Workmanship and Materials: Design/Builder warrants and

guarantees to Owner that all labor furnished to perform the Construction Work under the

Contract will be competent to perform the tasks undertaken and is the best quality obtainable,

that the product of such labor will yield only first-class results in strict compliance with the

Contract, that materials and equipment furnished will be of high quality and new unless

otherwise permitted by the Contract, and that the Construction Work will be of high quality,

free from faults and defects and in strict conformance with the Contract. Any and all

Construction Work not strictly conforming to these requirements shall be considered defective

and shall constitute a breach of Design/Builder's warranty.

(E) Commencement of Guarantee and Warranty: Special or specific guarantees and

warranties which are required by the Contract to run for a fixed period of time shall commence

running on the date of Substantial Completion of all Construction Work for a period of two

years.


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(F) Design/Builder's Schedule of Construction: Design/Builder, within _______ (__) days after

the Commencement Date, shall submit to the Director for his information, and shall comply

with, Design/Builder's Schedule of Construction for completing the Construction Work by the

Scheduled Completion Date. The Schedule of Construction shall reflect the performance of all

Construction Work on weekdays and non-holidays. The Schedule of Construction shall be a

detailed critical path management (“CPM”) schedule in a form acceptable to Owner. The

Schedule of Construction shall be revised at least monthly and shall be revised to reflect

conditions encountered from time to time and shall be related to the entire Project. Each such

revision shall be furnished to Owner. Strict compliance with the requirements of this Paragraph

shall be a condition precedent for payment to Design/Builder, and failure to strictly comply

with said requirements shall constitute a material breach of the Contract. No claim for an

increase in the Guaranteed Maximum Price (“GMP”) shall be allowed as a result of

Design/Builder basing the GMP upon an early completion schedule, or as a result of delays

and costs attributable to completion later than the planned early completion date.

(G) Record Copy of Contract Documents: Design/Builder shall continuously maintain at the

site, for the benefit of Owner, an updated copy of this Contract, including one record copy of

the Contract Documents marked to record on a current basis changes, selections and

modifications made during construction. Additionally, Design/Builder shall maintain at the site,

for the benefit of Owner, a copy of all Shop Drawings, Product Data, Samples, and other

Submittals. Upon Final Completion of the Construction Work, or upon the Director's request,

all of the documents described in this Paragraph shall be finally updated and delivered to

Owner and shall become the property of Owner.

(H) Review and Approval of Submittals: Design/Builder shall review, study, and approve, or

take other necessary action upon all Shop Drawings, Product Data, Samples, and other

Submittals to ensure that the Project will be constructed in a timely fashion in strict compliance

with the Contract. No deviation from, substitution for, or other modification from the Contract

Documents shall be allowed by Design/Builder in a shop drawing or submittal without written

approval, in the form of a Change Order, from Owner. Design/Builder shall engage in prompt

and adequate review of Shop Drawing and other Submittals to maintain the Construction

Schedule; Design/Builder also warrants it will use its best independent professional judgment

in its review to determine compliance with the Contract Documents.


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(I) Owner's Option to Review Submittals: Owner shall also, in its discretion, have the right

to review and approve Submittals, and if Owner so elects, Design/Builder shall not perform

any portion of the Construction Work as to which Owner has required submittal and review

until such Submittal has been approved by the Director. Approval by the Director, however,

shall not be evidence that Construction Work installed pursuant to the Director’s approval

conforms to the requirements of the Contract nor shall such approvals relieve Design/Builder

of any of its responsibilities or warranties under the Contract. If Owner elects to review

Submittals, Design/Builder shall maintain a Submittal log which shall include, at a minimum,

the date of each Submittal, the date of any resubmittal, the date of any approval or rejection,

and the reason for any approval or rejection. Design/Builder shall have the duty to carefully

review, inspect and examine any and all Submittals before submission of same to Owner. Shop

Drawings and other Submittals from Design/Builder do not constitute a part of this Contract.

(J) Procurement and Review of Warranties: Design/Builder shall procure from all

Subcontractors and Suppliers and shall transmit to the Director, all warranties required by the

Contract. Design/Builder shall review all such warranties and shall certify to Owner that the

warranties are in strict compliance with the requirements of the Contract.

(K) Procurement of Operations and Maintenance Documentation: Design/Builder shall

prepare or procure and shall transmit to the Director all documentation required by this

Contract regarding the operation and recommended maintenance programs relating to the

various elements of the Construction Work.

(L) As-Built Drawings: Design/Builder shall prepare and provide to the Director a complete

set of all as-built drawings which shall be complete and, except as specifically noted, shall

reflect performance of the Construction Work in strict compliance with the requirements of

this Contract.

(M) Compliance with Labor Laws: Design/Builder shall assume all labor responsibility for

all personnel assigned to or contracted for the performance of the Construction Work and

agrees to strictly comply with all its obligations as employer with respect to said personnel

under all applicable labor laws.

(N) Testing, Inspections, and Approvals: Design/Builder shall be responsible for procuring

all tests and inspections required by sound professional practices and by governmental


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authorities having jurisdiction over the Project. Design/Builder shall submit certified results of

such tests to Owner. If the laws, ordinances, rules, regulations or orders of any public authority

having jurisdiction require any Construction Work to be specifically inspected, tested, or

approved, Design/Builder shall assume full responsibility therefore, pay all costs in connection

therewith and furnish to Owner the required certificates of inspection, testing or approval.

(O) Owner's Regulations and Applicable Laws: Design/Builder shall, during the course of

the Construction Work, comply with any regulations or guidelines prescribed by Owner.

Design/Builder warrants that it will comply with all public laws, ordinances, rules and

regulations applicable to the services to be performed under the Contract, including without

limitation, those relating to the terms and conditions of the employment of any person by

Design/Builder in connection with the Construction Work to be performed under the Contract.

(P) Compliance with Construction Regulations: Design/Builder shall perform the

Construction Work in accordance with all construction codes, laws, ordinances or regulations

applicable to the design and execution of the Construction Work. Any fine or penalty which

may be imposed as consequence of any violation of this provision shall be paid by

Design/Builder, and Design/Builder shall fully indemnify and hold Owner harmless from all

loss, damage, and expense, including attorney's fees, resulting from any such violation or

alleged violation of codes, laws, ordinances, or regulations, except that such indemnity shall

not apply if the violation is caused in part by a negligent or willful act or omission of Owner,

its officers, agents, or employees in which case Design/Builder’s indemnity obligation shall be

based on the Design/Builder’s pro rata contribution to the loss, damage or expense.

(Q) Permits, Licenses and Notices: All construction and building permits, licenses and

authorizations necessary for the construction of the Project shall be secured and paid for by

Design/Builder. Design/Builder shall notify the Director when it has received said permits,

licenses, and authorizations, and upon receipt shall supply the Director with copies of same.

The originals of permits, licenses and authorizations shall be delivered to the Director upon

completion of the Construction Work, and receipt of these documents by Owner shall be a

condition precedent to final payment. Design/Builder shall also give and maintain any and all

notices required by applicable laws pertaining to the construction of the Construction Work.

(R) Conditions to Site Access: While on Owner's property, all Design/Builder's employees

and Subcontractors shall confine themselves to areas designated by the Director and will be


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subject to Owner's badge and pass requirements, if any, in effect at the site of the Construction

Work.

(S) Site Safety and Security: Design/Builder shall take all reasonable steps and legally

required measures at the site to comply with applicable safety regulations and standards and

to adequately protect the Construction Work, stored materials, and temporary structures

located on the premises, and to prevent unauthorized persons from entering upon the site.

Design/Builder shall at all times safeguard Owner's property and employees from injury or

loss in connection with the performance of the Contract. Design/Builder shall at all times

safeguard and protect its own partially or completely finished Construction Work and that of

the adjacent property and all adjacent construction Work from damage. Design/Builder shall

protect Owner's equipment, apparatus, machinery, and other property and all adjacent

construction Work with boarding and other safeguards so as to keep the premises free from

dampness, dirt, dust, or other damage and shall remove all such temporary protection upon

completion of the Construction Work.

(T) Repair of Collateral Damage: Unless otherwise instructed by Owner, Design/Builder

shall repair and return to original condition all buildings, streets, curbs, sidewalks, utilities or

other facilities affected by Design/Builder's performance of the Construction Work.

(U) Cleaning the Site: Design/Builder shall keep the site reasonably clean during

performance of the Construction Work. Upon Final Completion of the Construction Work,

Design/Builder shall thoroughly clean the site and the Project and remove all waste, debris,

trash and excess materials or equipment, together with Design/Builder's property therefrom.

(V) Owner's Access to Construction Work: At all times relevant to the Contract,

Design/Builder shall provide access to the Construction Work to Owner and its designees

without formality or other procedure.

(W) Decisions Regarding Aesthetic Effect: The Director's decisions in matters relating to

aesthetic effect shall be final.

(X) Design/Builder to Remain an Independent Contractor: In performing both Design

Services and Construction Work under this Contract, the relationship between Owner and

Design/Builder is that of independent contractor, and the execution of this Contract does not

change the independent status of Design/Builder. Design/Builder shall exercise independent


18

judgment in performing its duties under this Contract and is solely responsible for setting

working hours, scheduling or prioritizing the Contract work flow and determining how all

Contract work is to be performed. No term or provision of this Contract or act of

Design/Builder in the performance of this Contract shall be construed as making

Design/Builder the agent, servant or employee of Owner, or making Design/Builder or any of

its employees eligible for the fringe benefits, such as retirement, insurance and worker’s

compensation, which Owner provides its employees.

ARTICLE 10

CONTRACT PRICE

(A) Design Services Fee, and Guaranteed Maximum Price: Owner shall pay, and

Design/Builder shall accept, as full and complete payment for the Design Services, an amount

not to exceed _______________ Dollars and _________Cents ($ ), payable on the basis

of monthly billings as Design Services are completed and accepted by the Director. Design

additions made to the original concept plan which are not referenced as add alternates in

this Agreement, and which are considered and approved of during the design process, will

be incorporated by Change Order. The Design Change Order will specify the additional

design fee, if any, for the requested enhancements, and will be signed by both parties.

(1) Prior to final completion and acceptance of Design Services, and upon

presentation of final Design and Contract Documents to the Director for final review,

Design/Builder shall also provide to Owner a final Guaranteed Maximum Price (“GMP”)

that guarantees to Owner the price for which all Construction Work will be completed

within the construction schedule and the Project Budget.

(2) Owner shall pay and Design/Builder shall accept the GMP for the performance

of all Design, Engineering, and Construction Work required by the Contract, and the

performance of all other requirements of this Contract. The GMP shall consist of the

Cost of the Construction Work as defined in the Contract, plus any Design/Builder’s

Management Fee, which is included in the GMP. Design/Builder agrees and guarantees

the GMP shall not to exceed ($________________)______________________________Dollars and

_____________Cents, subject to additions and deductions by Change Order as provided

in the Contract Documents. Owner agrees to perform its responsibilities so as to assist

Design/Builder to facilitate the completion of the Construction Work and represents to


19

Design/Builder that there will be sufficient funds available to pay Design/Builder the

final GMP of ($_________________), as adjusted by any Change Order. The GMP, unless

changed by Supplemental Agreement or Change Order, represents the absolute

limit of obligation or liability that Owner may ever have insofar as the cost for full

and final completion of the Construction Work, and the total of all payments to

Design/Builder or its Subcontractors, are concerned. Should additional amounts be

required to be expended, over and above the GMP, to achieve completion of the

Construction Work, including Project construction, and payment to Design/Builder, in

accordance with this Contract, liability for and payment of such additional amounts

shall be the sole responsibility of Design/Builder and its Contract Surety herein, and

Owner shall never be liable for same. Notwithstanding anything contained herein or

elsewhere to the contrary, should the final Cost of the Construction Work and

Design/Builder's compensation total less than the GMP, or any approved revision

thereof, the difference shall inure to the benefit of Owner and no claim for all or any

portion of said difference shall be valid against or payable by Owner. Owner's

limitation of obligation or liability set out in this Paragraph shall be

incontrovertible and unequivocal; any term or provision of this Contract, the

Exhibits, attachments, or provisions incorporated by reference in or to this

Contract, or of any Subcontract executed in furtherance of the anticipated

Construction Work under the Contract shall not be construed or deemed to alter

or waive this absolute condition. Likewise, Design/Builder's absolute responsibility for

the completion of the Project in accordance with the Contract Documents, including

the Plans and Specifications, and within the agreed cost constraints, as well as

Design/Builder's agreement to bear all costs in excess of the GMP without recourse to

Owner, if such excess costs are necessary for the completion of the Construction Work,

shall be incontrovertible and undisputable, and shall take precedence over all other

terms and provisions of this Contract and the Exhibits hereto, no part of which shall

be deemed to alter, diminish or waive such obligations.

(3) Allowances. Design/Builder and Owner agree that the contract sum may include

allowances specifically identified in the contract documents. If the actual cost of work

or allowance item, performed at Owner’s discretion, exceeds the allowance amount for

such work, Owner shall be liable for the amount exceeding the allowance for such

item; the Guaranteed Maximum Price shall be increased accordingly. If the allowance


20

is less than the actual cost of work, that amount will reduce the Guaranteed Maximum

Price.

Allowance Schedule Amount $_________ $_________

$_________ $_________

(4) Add Alternate Options. These alternates may, or may not, be added by Owner.

Alternates will be selected before establishing the Final GMP.

Add Alternates Pricing Schedule Price

$ $

(B) Management of Construction Work: In addition to the Construction Work

Design/Builder will perform, it will also provide all the usual and necessary traditional

construction management services incident to construction projects of the nature and scope

of this Project, for which the Management Fee is included as part of the GMP. The services

required are not intended in any manner to diminish the overall responsibility of

Design/Builder for the full and final completion of the Construction Work within the time and

cost constraints specified in this Contract.

(C) Cost of Construction Work: Owner agrees to pay Design/Builder for the Cost of the

Construction Work. However, in no event shall the sum of payments for the Cost of the

Construction Work, Design/Builder's Management Fee and any other Design/Builder

compensation exceed the Guaranteed Maximum Price, as adjusted by Change Order. The term

"Cost of the Construction Work" shall mean costs necessarily incurred in the performance of

the Construction Work during the Construction Phase, and paid or payable by the

Design/Builder.

(1) Design/Builder shall be responsible for enforcing warranties and for obtaining

correction and/or replacement of all defective work not constructed or installed in

accordance with the Contract Documents. All such corrective or remedial work required


21

by the Contract Documents shall be performed by the responsible Subcontractors

under the terms of their Subcontracts, without additional cost to the Owner. Costs

incurred by Design/Builder to correct or remedy work performed by Design/Builder's

own forces, or where the responsible Subcontractor fails to perform, shall not be a

Cost of the Construction Work, and shall be Design/Builder's sole responsibility, at no

additional cost to Owner; provided, however, Design/Builder shall be entitled to the

proceeds of any Subcontractor maintenance bond, where such Subcontractor has

defaulted in this regard.

(D) Reconstruction Due to Casualty Loss: If, after a substantial loss from fire, flood, or

similar cause not due to the default or neglect of the Design/Builder, and the Design/Builder

is put in charge of reconstruction, the Design/Builder shall be paid a management fee for its

services which will be negotiated at the time of occurrence, and paid by the proceeds of

insurance, or through utilization of the Change Order procedure set out in this Contract.

(E) Discounts, Refunds, Sales of Surplus Materials: All discounts, if realized, for prompt

payment shall belong to Owner and shall be accounted for in the applicable GMP line item.

All trade discounts, rebates, and refunds, and all returns from sale of surplus materials and

equipment, shall likewise belong to Owner, and Design/Builder and Owner shall make

provisions so that they can be secured, the amounts thereof to be accounted for in the

applicable line item.

ARTICLE 11

PAYMENT OF THE CONTRACT PRICE

(A) Payment Procedure: Owner shall pay the Contract Price to Design/Builder in

accordance with the procedures set forth in this Article 11.

(B) Request for Payment: On or before the twentieth day of each month, Design/Builder

shall submit to Owner its request for payment in such form, and with supporting

documentation, as Owner may require. Each request shall seek payment for the Cost of the

Construction Work and Services as defined and allowed which were incurred during the

preceding month.

(C) Time for Payment: Within twenty (20) days after receipt by Owner of a properly

prepared and certified request for payment, Owner shall make payment to Design/Builder in


22

an amount equal to the total of the Cost of the Construction Work and Services properly

performed or furnished as of the date covered by such request for payment, less retainage in

the amount of five percent (5%), and less any payments previously made by Owner to

Design/Builder.

(D) Right to Audit: Owner shall be entitled to rely upon the accuracy and completeness of

the information furnished by Design/Builder in connection with its request for payment. Owner

shall have the right, however, upon demand, to make a detailed examination, audit or

inspection of Design/Builder’s books and records relating to the Allowances for the purpose

of verifying the accuracy and completeness of such information. In the event Owner

determines that Design/Builder has been paid any sums not due Design/Builder, same shall

be reimbursed by Design/Builder to Owner within forty-eight (48) hours of demand by Owner.

(E) Condition Precedent to Final Payment: Notwithstanding any other provision in the

Contract Documents, final payment shall not be made to Design/Builder until Design/Builder

has fully performed all of its obligations under the Contract, except for warranty and guarantee

components, which are excluded for the purposes of this Article 11(E), and the Design Services

and the Construction Work are fully complete.

(F) Owner's Review of Pay Requests: Owner shall have the right to review all pay requests

and the Design Services and the Construction Work at the Project site or elsewhere to

determine whether the quantity and quality of the Construction Work and the Design Services

is as represented in the pay request and as required by the Contract.

(G) Conditions Precedent to Payment: In addition to all other conditions precedent

contained herein, it shall be a condition precedent to payment of any pay request that

Design/Builder have submitted updated schedules for the performance of its Construction

Work and Design Services as required by this Agreement.

(H) Design/Builder's Use of Progress Payments: Upon receipt of any payment from Owner,

Design/Builder shall promptly pay all Subcontractors, materialmen, laborers, and Suppliers

such amounts as they are entitled for the Construction Work covered by such payment.

(I) Use of Joint Checks: If Owner becomes informed that Design/Builder has not paid a

Subcontractor, materialman, laborer, or Supplier as provided herein, Owner shall have the

right, but not the duty, to issue checks and payment then or thereafter otherwise due to


23

Design/Builder naming Design/Builder and any such Subcontractor, materialman, laborer, or

Supplier as joint payees. Such joint check procedure, if employed by Owner, shall create no

rights in favor of any person or entity beyond the right of the named payees to payment of

the check and shall not be deemed to commit Owner to repeat the procedure in the future

nor to create any contractual or other relationship of any kind between Owner and such

person or entity.

(J) Payment Not a Waiver or Acceptance: No payment to Design/Builder, nor any use or

occupancy of the Project by Owner, shall be interpreted or construed to constitute acceptance

of any Construction Work not in strict compliance with the Contract, and Design/Builder

expressly accepts the risk that defective Construction Work may not be detected (1) during

any inspection by Owner, (2) prior to making of any payment to Design/Builder, or (3) before

Owner's occupancy of the Project.

(K) Withholding of Payment: Owner shall have the right to refuse to make payment and,

if necessary, may demand the return of a portion or the entire amount previously paid to

Design/Builder in an amount then reasonably believed by Owner to be adequate to cover the

demonstrated penalties, damages, and potential losses resulting or reasonably likely to result

from:

(1) The quality of a portion, or all, of Design/Builder's Construction Work not being

in accordance with the requirements of this Contract;

(2) The quantity of Design/Builder's Construction Work not being as represented

in Design/ Builder's pay request, or otherwise;

(3) Design/Builder's rate of progress being such that, in Owner's reasonable and

demonstrated opinion, Substantial Completion, Final Completion, or both, may be

inexcusably delayed;

(4) Design/Builder's failure to use Contract funds, previously paid Design/Builder

by Owner, to pay Design/Builder's Project-related obligations including, but not limited

to, Subcontractors, laborers and material and equipment Suppliers;

(5) Evidence that the balance of the Construction Work cannot be completed in

accordance with the Contract for the unpaid balance of the Contract Price;

(6) Claims made, or likely to be made, against Owner or its property;


24

(7) Loss caused by Design/Builder;

(8) Design/Builder's failure or refusal to perform any of its obligations to Owner.

In the event that Owner makes written demand upon Design/Builder for amounts previously

paid by Owner as contemplated in this Paragraph 11(M), Design/Builder shall promptly comply

with such demand.

(L) Limitation on Duty to Pay: In addition to the grounds for withholding payment as set

forth in Paragraph 11(M) hereinabove, Owner and Design/Builder further agree as follows:

(1) Within ten (10) calendar days of the effective date hereof, Design/Builder shall

submit to Owner a Schedule of Values allocating the Guaranteed Maximum Price to

the various portions of the Design Services and the Construction Work, herein attached

within Exhibit B. Such Schedule of Values shall be prepared in such form, with such

detail, and supported by such data as Owner may require to substantiate its accuracy.

Design/Builder shall not imbalance its Schedule of Values nor artificially inflate any

element thereof. The violation of this provision by Design/Builder shall constitute a

material breach of this Agreement. The Schedule of Values shall only be utilized as a

basis for evaluating Design/Builder’s request(s) for payment and shall only constitute

such basis after it has been acknowledged in writing by Owner;

(2) Each request for payment shall include a certification by Design/Builder of the

percentage of completion, as of the date of such request for payment, of those

portions of the Design Services and the Construction Work as identified in the Schedule

of Values. Design/Builder shall furnish to Owner such documentation or other

supporting data as Owner may request in order to verify the percentage of completion

certified by Design/Builder;

(3) Owner shall have no obligation to make payment to Design/Builder for any

Design Services or Construction Work where the amount for which such payment is

requested is in excess of the amount allocated in the Schedule of Values for such

Design Services or Construction Work based upon the percentage of completion as of

the date of the request for payment.

(M) Unexcused Failure to Pay: If Owner, without cause or basis hereunder, fails to pay

Design/Builder any amounts due and payable to Design/Builder within twenty (20) days after


25

the date established in this Contract for payment of such amounts, then the payment shall

bear interest in accordance with the Florida Prompt Payment Act, as amended. Provided,

however, that Owner shall not be liable for interest due on any late or delayed progress

payment or final payment caused by any good faith claim or dispute, any discrepancy in

quantities, any failure to provide supporting documentation or other information required

with the request for payment or as a precondition to payment under the Contract Documents,

or due to any payment Owner has a right to withhold or not certify under the Contract

Documents.

ARTICLE 12

SUBSTANTIAL AND FINAL COMPLETION

(A) Substantial Completion: “Substantial Completion” means that stage in the progression

of the Construction Work, as approved by Owner in writing, when the Project is sufficiently

complete in accordance with the Contract that Owner can enjoy beneficial use or occupancy

of the entire Project and can utilize it for all of its intended purposes. A condition precedent

to Substantial Completion is the receipt by Owner of all necessary certificates of occupancy

or other authorizations for the use and occupancy of the Project required by any governmental

or regulatory authority. Owner reserves the right to occupy and use any part, phase or system

of the Project when such part, phase or system is substantially completed, but such partial

use or occupancy of the Project shall not result in the Project being deemed substantially

complete, and such partial use or occupancy shall not be evidence of Substantial Completion.

(B) Determination of Substantial Completion: When Design/Builder believes that the

Construction Work is substantially complete, Design/Builder shall notify the Director in writing

and shall submit to Owner a list of items remaining to be completed or corrected. The Director

(or an independent consultant hired by Owner) will perform an inspection. If the Construction

Work is substantially complete, in the sole opinion of Owner, Owner will prepare a Certificate

of Substantial Completion which shall establish the date of Substantial Completion. The

Certificate of Substantial Completion shall state the responsibilities of Owner and

Design/Builder for Project security, maintenance, utilities, damage to the Construction Work,

and insurance, and shall fix the date, not longer than thirty (30) days after the established

date of Substantial Completion, within which Design/Builder shall complete any items of

incomplete or defective Construction Work. The Certificate of Substantial Completion shall be


26

submitted to Design/Builder for its written acceptance of the responsibilities assigned to it in

such certificate.

(C) Payment Upon Substantial Completion: Upon Substantial Completion of the

Construction Work, and upon execution by both Owner and Design/Builder of the Certificate

of Substantial Completion, Owner shall pay Design/Builder, within thirty (30) days, all sums

due Design/Builder, including such amount of retainage as the Owner in its reasonable

discretion wishes to pay based upon the value of remaining performance, less the reasonable

costs, as determined by Owner in Owner’s reasonable and demonstrated discretion, for

completing all incomplete Construction Work and Design Services, correcting and bringing

into strict conformance all defective and nonconforming Construction Work, and handling all

outstanding or threatened claims.

(D) Final Completion: “Final Completion” means the completion of all Design Services and

all Construction Work required by, and in strict compliance with, the Contract, including

Design/Builder's provision to Owner of all documents and things required to be provided by

the Contract.

(E) Determination of Final Completion: When Design/Builder believes that all of the

Construction Work is finally complete, and Design/Builder is ready for a final inspection,

Design/Builder shall so notify the Director in writing. The Director (or a designee of the Owner)

will then make final inspection of the Construction Work and, if the Construction Work is

complete in strict accordance with the Contract, and the Contract has been fully performed,

then Owner will authorize final payment, providing for payment of the remainder of the

Contract Price, less any amount withheld pursuant to the Contract.

(F) Payment After Final Completion: Owner shall make final payment of all remaining

sums due to Design/Builder within thirty (30) days after Final Completion as reflected by

Owner's final acceptance, provided that all documents and things required to be delivered to

Owner under this Contract have been delivered as required, and provided that all other

conditions precedent to payment have been satisfied.

(G) Conditions Precedent to Final Payment: Prior to being entitled to receive final payment

and as a condition precedent thereto, Design/Builder shall furnish Owner, in the form and

manner required by the Director, the following:


27

(1) consent of surety to final payment;

(2) a complete set of the as-built drawings and the record set of Contract

Documents; and

(3) all product warranties, operating manuals, instruction manuals and other record

documents, drawings and things customarily required of a Contractor, or expressly

required herein, as a part of or prior to Project closeout.

(H) Acceptance of Final Payment a Waiver: Acceptance by Design/Builder of final payment

shall constitute a waiver and release of all claims against Owner by Design/Builder except for

those claims previously made in writing against Owner by Design/Builder, pending at the time

of final payment and specifically identified on Design/Builder's pay request for final payment

as unsettled at the time it submits its pay request.

ARTICLE 13

OWNER'S DUTIES, OBLIGATIONS, AND RESPONSIBILITIES

In addition to payment, Owner shall undertake to perform the following:

(A) Provide Project Information: Owner shall provide Design/Builder with information

regarding Owner's requirements for the Project including any desired or required design or

construction schedule.

(B) Review of Documents: Owner shall review any documents submitted by Design/ Builder

requiring Owner's decision, and shall render any required decisions pertaining thereto.

(C) Provide Notice of Defects: In the event Owner knows of any material fault or defect in

the Construction Work, nonconformance with the Contract, or of any errors, omissions or

inconsistencies in the Design Documents, then Owner shall give prompt notice thereof in

writing to Design/Builder.

(D) Access to the Site and the Construction Work: Owner shall provide Design/Builder

access to the site and to the Construction Work, and shall provide Design/Builder with such

information, existing and reasonably available, necessary to Design/Builder's performance of

the Contract as Design/Builder may request.


28

(E) Cooperation to Secure Permits, Licenses, Approvals, and Authorizations: Owner shall

cooperate with Design/Builder in securing any necessary licenses, permits, approvals or other

necessary authorizations for the design, construction and certification of the Project.

(F) Timely Performance: Owner shall perform the duties set forth in this Article 13 in a

reasonably expeditious fashion so as to permit the orderly and timely progress of

Design/Builder's Design Services and of the Construction Work.

(G) Owner's Reviews, Inspections, Approvals, and Payments Not a Waiver: Owner's review,

inspection, or approval of any Construction Work, Design Documents, Submittals, or pay

requests by Design/Builder shall be solely for the purpose of determining whether such

Construction Work and such documents are generally consistent with Owner's construction

program and requirements. No review, inspection, or approval by Owner of the Construction

Work or documents shall relieve Design/Builder of its responsibility for the performance of its

obligations under the Contract or the accuracy, adequacy, fitness, suitability, or coordination

of its Design Services or the Construction Work. Approval by any governmental or other

regulatory agency or other governing body of any Construction Work, Design Documents, or

Contract Documents shall not relieve Design/Builder of responsibility for the strict

performance of its obligations under the Contract. Payment by Owner pursuant to the Contract

shall not constitute a waiver of any of Owner's rights under the Contract or at law, and

Design/Builder expressly accepts the risk that defects in its performance, if any, may not be

discovered until after payment, including final payment, is made by Owner.

(H) Delay or Forbearance Not Waiver: Owner's agreement not to exercise, or its delay or

failure to exercise, any right under the Contract or to require strict compliance with any

obligation of Design/Builder under the Contract shall not be a waiver of the right to exercise

such right or to insist on such compliance at any other time or on any other occasion.

(I) Documents Requested by Design/Builder: Owner shall furnish to Design/Builder, prior

to the execution of this Agreement, any and all written and tangible material knowingly in its

possession concerning conditions below ground at the site of the Project. Such written and

tangible material is furnished to Design/Builder only in order to make complete disclosure of

such material and for no other purpose. By furnishing such material, Owner does not represent,

warrant, or guarantee its accuracy or completeness either in whole or in part, and shall have

no liability therefor. If Design/Builder requests it in writing, Owner shall also furnish surveys,


29

legal limitations, utility locations (if known), and a legal description of the Project site.

(J) Approvals and Easements: Owner shall obtain all easements required for construction,

and shall pay for necessary assessments and charges required for use and occupancy of the

Construction Work. Design/Builder shall render such assistance as Owner may request in

obtaining such easements, certificates of occupancy, and the like.

(K) Right to Stop Construction Work: In the event Design/Builder fails or refuses to perform

the Construction Work in strict accordance with the Contract, or is otherwise in breach of this

Contract in any way, Owner may, at its option, instruct Design/Builder to cease and desist

from performing further Construction Work, or any part thereof. Upon receipt of such

instruction from Owner in writing, Design/Builder shall immediately cease and desist as

instructed by Owner and shall not proceed further until the cause for Owner's instructions has

been corrected, no longer exists, or Owner instructs that the Construction Work may resume.

(L) Owner's Right to Perform Construction Work: In the event Owner issues such

instructions to stop Construction Work, and in the further event that Design/Builder fails and

refuses within seven (7) days of receipt of same to provide adequate assurance to Owner that

the cause of such instructions will be eliminated or corrected, then Owner shall have the right,

at its sole and exclusive cost, risk, and liability, to carry out the Construction Work with its

own forces, or with the forces of other contractors, and Design/Builder shall be fully

responsible for the costs incurred in correcting any defective or deficient Construction Work.

The rights set forth in Paragraph 13(K) and this Paragraph 13(L) are in addition to, and without

prejudice to, any other rights or remedies Owner may have against Design/Builder, including

the rights to terminate or withhold payment as provided herein.

ARTICLE 14

PROJECT DOCUMENTATION

(A) Maintenance of Project-Related Records: Design/Builder shall maintain and protect all

records relating in any manner whatsoever to the Project (the “Project Records”) for no less

than four (4) years after Final Completion of the Project, and for any longer period of time as

may be required by law or good management practice.


30

(B) Availability of Project-Related Records to Owner: All Project Records which are in the

possession of Design/Builder or Design/Builders Subcontractors shall be made available to

Owner for inspection and copying upon Owner's request at any time. Additionally, such

records shall be made available upon request by Owner to any state, federal or other

regulatory authorities, and any such authority may review, inspect and copy such records. The

Project Records include, without limitation, all drawings, plans, specifications, Submittals,

correspondence, logs, minutes, memoranda, photographs, tape or videotape recordings, or

other writings or things which document the Project, its design, or its construction. Said

records include those documents reflecting the cost of design and construction to

Design/Builder.

ARTICLE 15

PERSONNEL, SUBCONTRACTORS AND SUPPLIERS

(A) Subcontractor Defined: A “Subcontractor” means an entity which has a direct contract

with Design/Builder to perform a portion of the Construction Work or the Design Services.

For purposes of the Contract, Subcontractors shall also include those furnishing specially

fabricated equipment and materials for the Project.

(B) Supplier Defined: A “Supplier” means an entity providing only equipment or materials

for the performance of the Construction Work.

(C) Objections to Subcontractors: Upon execution of this Agreement, and at such later

times as may be applicable, Design/Builder shall furnish Owner, in writing, the names of

persons or entities proposed by Design/Builder to act as Subcontractors on the Project.

Design/Builder shall provide such information regarding such proposed Subcontractors as

Owner deems necessary. Owner shall promptly reply to Design/Builder, in writing, stating any

objections Owner may have to such proposed Subcontractors. Design/Builder shall not enter

into a subcontract with an intended Subcontractor with reference to whom Owner objects. In

the event Owner objects to such proposed Subcontractor, Design/Builder shall be entitled to

the additional costs and time in retaining a Subcontractor acceptable to the Owner. Any

consent or failure to reject by Owner shall in no way relieve Design/Builder of any of its duties

or warranties under the Contract.


31

(D) Terms of Subcontracts: All subcontracts and purchase orders with Subcontractors shall

afford Design/Builder rights against the Subcontractor which correspond to those rights

afforded to Owner against Design/Builder under this Contract, including those rights of

Contract suspension, termination, and stop Construction Work orders as set forth in this

Contract. It is expressly agreed that no relationship of agency, employment, contract,

obligation or otherwise shall be created between Owner and any Subcontractor of

Design/Builder, and a provision to this effect shall be inserted into all agreements between

Design/Builder and its Subcontractors.

(E) Design/Builder Responsible for Acts of Its Subcontractors: Should Design/Builder

subcontract all or any part of the Construction Work, such subcontracting of the Construction

Work shall not relieve Design/Builder from any liability or obligation under the Contract or

under any applicable policy, law or regulation, and Design/Builder shall be responsible for all

and any acts, defaults, omissions or negligence of its Subcontractors, Suppliers, and

consultants.

(F) Personnel: Design/Builder shall employ and assign only qualified and competent

personnel to perform any service or task concerning the Project. Design/Builder shall designate

one such person as the Project Design/Builder. Absent written instruction from Design/Builder

to the contrary, the Project Design/Builder shall be deemed to be Design/Builder's authorized

representative and shall be authorized to receive and accept any and all communications from

Owner. Key design and supervisory personnel assigned by Design/Builder to this Project are

as follows:

NAME FUNCTION

XXXXX XXXXXXXX XXXXXXXXXXX

So long as the individuals named above remain actively employed or retained by

Design/Builder, or any related entity or affiliate thereof, they shall perform the functions

indicated next to their names unless Owner agrees to the contrary in writing or unless Owner

requests removal of any such individual from the Project. In the event Owner requests the

removal of any of the individuals named above, Design/Builder shall immediately comply and

shall immediately replace such individual with a qualified substitute to whom Owner makes

no objection. In the event one or more individuals not listed above subsequently assumes


32

one or more of those functions listed above, Design/Builder shall be bound by the provisions

of this Paragraph 15(F) as though such individuals had been listed above.

(G) Removal of Subcontractors and Personnel: If, at any time during the course of the

Project, Owner reasonably determines that the performance of any Subcontractor or any

member of Design/Builder's staff working on the Project is unsatisfactory, Owner's

Representative may require Design/Builder to remove such Subcontractor or staff member

from the Project immediately and replace the staff member at no cost or penalty to Owner

for delays or inefficiencies the change may cause.

ARTICLE 16

CHANGES AND EXTENSIONS OF TIME

(A) Owner's Right to Order Changes: Changes in the Design Services or the Construction

Work under this Contract, consisting of additions, deletions, revisions or any combination

thereof, may be ordered unilaterally by Owner without invalidating the Contract. Such changes

shall be communicated by Change Order, Field Order or supplemental agreement, as

applicable. Design/Builder shall proceed diligently with any changes, and same shall be

accomplished in strict accordance with the following terms and conditions as set forth in this

Article 16.

(B) Changes and Extensions of Time: All change orders, changes requested by

Design/Builder, or extensions of Contract Time occurring during construction of the Project

related to actual Construction Work shall be governed by the City’s General Conditions of

Construction, Volume I. All changes to the scope of Design Services or extensions of the

agreed upon Design Schedule during the design process shall be made by mutual agreement

of Owner and Design/Builder, and claims for an increase in design compensation due to a

change in the scope of design construction Work or for an extension of time to the Design

Schedule shall be made in writing within seven (7) calendar days after occurrence of the event

that gives rise to the claim. All requests for additional compensation due to a change in the

scope of Design Services, and all requests for an extension of time to the Design Schedule,

shall include sufficient backup documentation for Owner to reasonably understand the request

and the amount of time or compensation requested and to determine the merits of the

request.


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(C) Adjustments to Guaranteed Maximum Price or Contract Time: Upon the occurrence of

a change order for Construction Work as set forth in Paragraph 16(A) hereinabove which

increases the Cost of the Construction Work, the Guaranteed Maximum Price will thereafter

include such Cost of the Construction Work and Services attributable to such change to the

extent allowed by Paragraph 10(B) hereinabove. The failure of Design/Builder to provide notice

in writing to Owner in accordance with Paragraph 16(B) of any request for an increase in the

Guaranteed Maximum Price or for an extension of the Contract Time shall constitute a waiver

by Design/Builder of any entitlement thereto.

(D) Continuing Duty to Perform Construction Work and Make Payment; In the event the

parties are unable to agree on the terms of a Change Order or Supplemental Agreement,

then Design/Builder shall continue to diligently perform the Design Services and the

Construction Work, including any change directed by Owner by Change Order or

Supplemental Agreement, and shall keep thorough records of the cost of performance of such

Change Order or Supplemental Agreement.

(E) Fiduciary Relationship: Design/Builder recognizes and accepts a fiduciary relationship

of trust and confidence hereby established between Design/Builder and Owner and agrees

that it shall at all times in good faith use its best efforts to advance Owner's interests and

agrees to perform the Design Services and the Construction Work in the highest professional

manner.

ARTICLE 17

CLAIMS BY DESIGN/BUILDER

(A) Terms and Conditions of Claims: Claims by Design/Builder against Owner are subject

to the terms and conditions of this Article 17, and strict compliance herewith shall be a

condition precedent to any liability of Owner therefor.

(B) Claim Procedures: All claims for additional compensation or additional time, regardless

of their nature, when they occur, or whether they occur during the design or construction

phase, shall be governed by the procedures of the City’s General Conditions of Construction,

Volume I.

(C) Continuous Duty to Provide Documentation: Design/Builder shall provide, and continue

to provide, to Owner all such documentation, including cost and time records, as and when


34

Owner may request so that Owner may evaluate Design/Builder's claim.

(D) Duty to Continue Performance: Design/Builder shall continue its performance under

this Contract regardless of the existence of any claims submitted by Design/Builder against

Owner.

(E) Claims for Increase in Compensation: In the event Design/Builder seeks to make a

claim for an increase in Design Services compensation or in the Guaranteed Maximum Price,

as a condition precedent to any liability of Owner for any claim, Design/Builder shall strictly

comply with the requirements of Paragraph 17(B) above and such notice shall be given by

Design/Builder before proceeding to execute any alleged additional or changed Construction

Work. Failure of the condition precedent to occur shall constitute a waiver by Design/Builder

of any claim.

(F) Limit of Owner's Liability for Increased Compensation: In connection with any claim by

Design/Builder against Owner for compensation in excess of the Guaranteed Maximum Price

or the not- to exceed limit of the Design Services compensation, any liability of Owner shall

be strictly limited to the Cost of the Construction Work and Design Services as defined and

allowed in Paragraph 10(C) above and shall in no event include, indirect, consequential, impact

or other costs, expenses or damages of Design/Builder or its Subcontractors. Owner shall not

be liable to Design/Builder for claims of third parties, including Subcontractors, for acts,

omissions, events, or conditions for which Owner would not be liable to Design/Builder under

the terms of the Contract. As a condition precedent to Owner's liability to Design/Builder for

any loss or damage resulting from claims of third parties, including Subcontractors, such third

parties must have complied with all conditions contained in their agreements with

Design/Builder and such claims must have been submitted to Owner by Design/Builder in

strict compliance with all the requirements of this Article 17. Owner shall not be liable to

Design/Builder for claims of third parties including Subcontractors, unless and until the liability

of Design/Builder has been established in a court of competent jurisdiction.

(G) Owner’s Right to Order Acceleration and to Deny Claimed and Appropriate Time

Extensions, in Whole or in Part: Design/Builder acknowledges and agrees that Substantial

Completion of the Construction Work by or before the Scheduled Completion Date is, or may

be, of substantial importance to Owner.


35

(1) Owner shall accordingly have the right in its sole discretion to order

Design/Builder to accelerate its progress in such a manner as to achieve Substantial

Completion on or before such date as Owner may reasonably direct and, upon receipt,

Design/Builder shall comply with such order, provided that Owner and Design/Builder

have agreed in writing to the extent of such acceleration and associated costs.

(2) In the event that Design/Builder is otherwise entitled to an extension of Contract

Time and has made claim therefor in accordance with Paragraph 16(B) above, Owner

shall have the right in its sole discretion to deny all, or any part, of such extension of

Contract Time by written notice to Design/Builder provided within seven (7) days of

receipt of Design/Builder's claim. Should Owner deny Design/Builder's claim for an

extension of Contract Time under this Subparagraph (2), either in whole or in part,

Design/Builder shall proceed to prosecute the Construction Work in such a manner as

to achieve Substantial Completion on or before the then existing Scheduled

Completion Date.

(H) Claims Resolved By Change Order: The resolution of any claim under this Article 17

shall be reflected by a Change Order or Supplemental Agreement executed by Owner and

Design/Builder.

ARTICLE 18

UNCOVERING AND CORRECTING CONSTRUCTION WORK

(A) Design/Builder Not to Cover Construction Work Contrary to Requirements: If any of

the Construction Work is covered, concealed or obscured contrary to the written request of

Owner, or contrary to any provision of the Contract, said Construction Work shall, if required

by Owner, be uncovered for inspection and shall be properly replaced at Design/Builder's

expense without change in the Contract Time.

(B) Owner's Right to Order Uncovering Of Any Construction Work: If any of the

Construction Work is covered, concealed or obscured in a manner not inconsistent with

Paragraph 18(A) above, it shall, if required by Owner, be uncovered for inspection. If such

Construction Work conforms strictly with the Contract, the cost of uncovering and proper

replacement shall be charged to Owner. If such Construction Work does not strictly conform

with the Contract, Design/Builder shall pay the cost of uncovering and proper replacement.


36

(C) Duty to Correct Rejected Construction Work: Design/Builder shall immediately proceed

to correct Construction Work rejected by Owner as defective or failing to conform to the

Contract. Design/Builder shall pay all costs and expenses associated with correcting such

rejected Construction Work, including any additional testing and inspections made necessary

thereby.

Duty to Correct Defective Construction Work Discovered after Completion: In addition to its

warranty obligations set forth elsewhere herein, Design/Builder shall be specifically obligated

to correct at its cost and expense any and all defective or nonconforming Construction Work

for a period of twenty-four (24) months following Substantial Completion upon written

direction from Owner. This obligation shall survive final payment by Owner and termination

of the Contract.

(D) No Period of Limitation Established: Nothing contained in Paragraph 18(D) shall

establish any period of limitation with respect to other obligations which Design/Builder has

under the Contract. Establishment of the two-year time period in Paragraph 18(D) above

relates only to the duty to Design/Builder to specifically correct the Construction Work.

(E) Owner's Option to Accept Defective Construction Work: Owner may, but shall in no

event be required to, choose to accept defective or nonconforming Construction Work. In

such event, the Contract Price shall be reduced by the reasonable costs of removing and

correcting the defective or nonconforming Construction Work. Owner shall be entitled to a

reduction in the GMP regardless of whether Owner has, in fact, removed and corrected such

defective Construction Work. If the unpaid balance of the GMP, if any, is insufficient to

compensate Owner for the acceptance of defective or nonconforming Construction Work,

Design/Builder shall, upon written demand from Owner, pay Owner such additional

compensation for accepting defective or nonconforming Construction Work.

ARTICLE 19

SUSPENSION AND TERMINATION

(A) Suspension of Performance: Owner may for any reason whatsoever suspend

performance under the Contract. Owner shall give written notice of such suspension to

Design/Builder specifying when such suspension is to become effective.


37

(B) Ceasing Performance upon Suspension: From and upon the effective date of any

Suspension ordered by Owner, Design/Builder shall incur no further expense or obligations in

connection with this Contract, and Design/Builder shall cease its performance. Design/Builder

shall also, at Owner's direction, either suspend or assign to Owner any of its open or

outstanding subcontracts or purchase orders.

(C) Claim for Costs of Suspension: In the event Owner directs a suspension of performance

under this Article 19, limited by any fault of Design/Builder, and provided Design/Builder

submits a proper claim as provided in this Contract, Owner shall pay Design/Builder as full

compensation for such suspension Design/Builder's reasonable costs, actually incurred and

paid, of:

(1) demobilization and remobilization, including such costs paid to Subcontractors;

(2) preserving and protecting Construction Work in place;

(3) storage of materials or equipment purchased for the Project, including

insurance thereon; and

(4) performing in a later, or during a longer, time frame than that contemplated

by this Contract.

(D) Resumption of Construction Work after Suspension: If Owner lifts the suspension it

shall do so in writing, and Design/Builder shall, as reasonably promptly as possible, resume

performance of the Contract unless, prior to receiving the notice to resume, Design/Builder

has exercised its right of termination as provided herein.

(E) Termination by Owner for Convenience: Owner reserves the right, for any reason

whatsoever (including, but not limited to, non-appropriation of funding), or without reason,

terminate performance under the Contract by Design/Builder for convenience. Owner shall

give thirty (30) calendar days’ advance written notice of termination for convenience to

Design/Builder. Design/Builder shall incur no further obligations in connection with the

Contract and Design/Builder shall stop Design Services and the Construction Work when such

termination becomes effective. Design/Builder shall also, at Owner's direction, either terminate

or assign to Owner outstanding orders and subcontracts. Design/Builder shall settle the

liabilities and claims arising out of any terminated subcontracts and orders. Owner may direct

Design/Builder to assign Design/Builder's right, title and interest under terminated orders or


38

subcontracts to Owner or its designee. Design/Builder shall transfer title and deliver to Owner

such completed or partially completed Design Documents, Construction Work and materials,

equipment, parts, fixtures, information and Contract rights as Design/Builder has.

(F) Submission of Termination Claim and Compensation for Termination for Convenience:

When terminated for convenience, Design/Builder shall be compensated as follows:

(1) Design/Builder shall submit a termination claim to Owner specifying the

amounts believed to be due because of the termination for convenience together with

costs, pricing or other data required by Owner. If Design/Builder fails to file a

termination claim within three (3) months from the effective date of termination, Owner

shall pay Design/Builder an amount derived in accordance with Subparagraph (3)

below;

(2) Owner and Design/Builder may agree to the compensation, if any, due to

Design/Builder under this paragraph;

(3) Absent agreement to the amount due to Design/Builder, Owner shall pay

Design/Builder, as full compensation for termination for convenience, the following

amounts:

(a) the Cost of the Construction Work and Services, to the extent incurred

or paid prior to receipt by Design/Builder of the notice of termination;

(b) such portion of Design/Builder’s Fee which is earned and unpaid as of

the date of receipt by Design/Builder of the notice of termination;

(c) reasonable costs of settling and paying claims arising out of the

termination of subcontracts or orders pursuant to Paragraph 19(E) hereinabove.

These costs shall not include amounts paid in accordance with other provisions

of this Contract;

(d) reasonable costs of demobilization; and

(e) materials created and stored by Design/Builder or Design/Builder’s

Subcontractors.

In no event shall Design/Builder be entitled to recover lost profits or other incidental or

consequential damages from Owner on account of a termination for convenience, or an

erroneous termination for cause as described below.


39

(G) Termination by Owner for Cause: If Design/Builder does not perform the Construction

Work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel

or proper equipment or materials, or if it fails to timely discharge its obligations for labor,

equipment and materials, or proceeds to disobey applicable laws, ordinances, rules,

regulations or orders of any public authority having jurisdiction, or otherwise commits a

violation of a material provision of the Contract, then Owner may by written notice to

Design/Builder, without prejudice to any other right or remedy against Design/Builder or

others, terminate the performance of Design/Builder and take possession of the Project site

and of all materials and equipment at the site and may finish the Construction Work by

whatever methods it may deem expedient. In such cases, Design/Builder shall not be entitled

to receive any further payment until the Construction Work is finished.

(1) Erroneous Termination for Cause: In the event the employment of Design/Builder is

terminated by Owner for cause pursuant to Paragraph 19(G) and it is subsequently

determined by a court or other tribunal of competent jurisdiction that such

termination was without cause, such termination shall thereupon be deemed a

Termination for Convenience under Paragraph 19(E) and the provisions of Paragraph

19(F) regarding compensation shall apply.

ARTICLE 20

OWNERSHIP OF DOCUMENTS

(A) Documents Considered Owner's Property: The Design Documents and the Contract

Documents, including but not limited to, the drawings, specifications and other documents or

things prepared by Design/Builder for the Project, shall immediately become and be the sole

property of Owner. Any documents furnished by Owner shall remain the property of Owner.

Design/Builder may be permitted to retain copies of the Design Documents and Contract

Documents and any documents furnished by Owner for its records with approval in writing of

Owner; provided, however, that in no event shall Design/Builder use, or permit to be used,

any portion or all of such documents on other projects without Owner's prior written

authorization.


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ARTICLE 21

INDEMNITY

(A) General Indemnity: Design/Builder agrees to indemnify City, and its elected officials,

employees and volunteers against, and hold City and its elected officials, employees, and

volunteers harmless from all damages, claims, losses, costs, and expenses, including

reasonable attorneys’ fees, which City or its elected officials, employees or volunteers may

sustain, or which may be asserted against City or its elected officials, employees or volunteers,

arising out of the activities contemplated by this Agreement including, without limitation,

harm or personal injury to third persons during the term of this Agreement to the extent

attributable to the actions of Design/Builder, its agents, and employees.

ARTICLE 22

INSURANCE

(A) General Insurance Requirements: Design/Builder shall procure, pay for, and maintain

during the term of this Contract, insurances as detailed below with a company authorized to

do business in the State of Florida and otherwise acceptable to Owner.

(B) Additional Insured. The “City of Ocala” shall be added to all third party coverage

required by and provided for this contract as an “ADDITIONAL INSURED,” but only to the

extent of the risk obligations assumed hereunder by Design/Builder.

(C) Miscellaneous Insurance Provisions.

a. Severability of Interests. Design/Builder shall arrange for its liability insurance to

include, or be endorsed to include, a severability of interests / cross liability

provision, so that the “City of Ocala” (where named as an additional insured) will

be treated as if a separate policy were in existence, but without increasing the

policy limits.

b. Insurance Requirements. These insurance requirements shall not relieve or limit the

liability of the Design/Builder. The City does not in any way represent that these

types or amounts of insurance are sufficient or adequate to protect the


41

Design/Builder’s interests or liabilities, but are merely minimums. No insurance is

provided by the City under this contract to cover the Design/Builder.

c. Duplicate Coverage.

1. Insurance required of the Design/Builder or any other insurance of the

Design/Builder shall be considered primary and insurance or self-insurance of

the City shall be considered excess, as may be applicable to claims against the

City which arise out of this contract.

2. Insurance written on a “Claims Made” form is not acceptable without City of

Ocala Risk Management consultation.

3. No work shall be commenced under this contract until the required Certificate(s)

have been provided. Work shall not continue after expiration (or cancellation)

of the Certificate and shall not resume until new Certificate(s) have been

provided.

d. Deductibles. Design/Builder’s deductibles/self-insured retentions shall be disclosed

to the City and may be disapproved by the latter. They shall be reduced or

eliminated at the option of the City. The Design/Builder is responsible for the

amount of any deductible or self- insured retention.

e. Certificates. Design/Builder shall provide a Certificate of insurance, issued by an

agency authorized to do business in the State of Florida and with an A.M. Best

rating* of at least A, showing the “City of Ocala” as an Additional Insured. The City

of Ocala, Procurement Department, 110 SE Watula Ave, Ocala, FL 34471 should be

shown as the Certificate Holder. Renewal certificates must also be forwarded to the

Procurement Department prior to the policy expiration. Ten (10) days written notice

must be provided to the City of Ocala’s Procurement Department in the event of

cancellation. *Non-rated insurers must be pre-approved by the City Risk Manager.

f. Failure to Maintain Coverage. In the event that Design/Builder shall fail to obtain

or maintain in full force and effect any insurance coverage required to be obtained

by Design/Builder under this agreement, the City may procure same from such

insurance carriers as the City may deem proper, irrespective that a lesser premium

for such insurance coverage may have been obtained from another insurance

carrier, and Design/Builder shall pay, upon demand of the City, and all premiums,


42

costs, charges, and expenses incurred or expended by the in obtaining such

insurance. Notwithstanding the foregoing sentence, in the event the City procures

the insurance coverage required of Design/Builder hereunder, the City shall in no

manner be liable to Design/Builder for any insufficiency or failure of coverage with

regard to such insurance or any loss to Design/Builder occasioned thereby, and

additionally, the procurement of such insurance by the City shall not relieve

Design/Builder of its obligations under this Agreement to maintain insurance

coverage in the types and amounts herein specified, and Agency shall nevertheless

hold the City harmless from any loss or damage incurred or suffered by the City

from Design/Builder’s failure to maintain such insurance.

(D) LIABILITY INSURANCE. General liability insurance, with limits of not less than

$1,000,000 per occurrence and $1,000,000 aggregate shall be provided and maintained by

the Design/Builder. The policy will include a “per project aggregate” and the Certificate must

show an appropriate endorsement (ISO CG2501 or equal).

A. If the Commercial General Liability form is used:

1. Coverage A - shall include premises, operations, products and completed

operations, independent contractors, contractual liability covering this contract

and broad form property damage coverage.

2. Coverage B - shall include personal injury.

3. Coverage C - medical payments, is not required.

B. If the Commercial General Liability form is used, it shall include at least:

1. Bodily Injury and Property Damage liability for premises, operations, products

and completed operations, independent contractors, and property damage

resulting from explosion, collapse or underground (XCU) exposures.

(E) BUSINESS AUTO LIABILITY. Business Auto Liability insurance shall be provided by the

Design/Builder with combined single limits of not less than $1,000,000 per occurrence and

is to include bodily injury and property damage liability arising out of operation,

maintenance, or use of any auto including owned, non-owned and hired automobiles and

employee non-ownership use.


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(F) BUILDERS’ RISK. The Contractor, with sole liability for payment of premiums, shall

purchase and maintain builder’s risk insurance upon the Work at the site in the amount not

less than the completed value of the project thereof. This insurance shall include the interests

of the Owner, Contractor, subcontractors, City Engineer, and the officers, directors, partners,

employees, agents, and other consultants and subcontractors of each and any of them, each

of whom is deemed to have an insurable interest and shall be listed as a named insured.

(G) WORKERS’ COMPENSATION. Design/Builder shall purchase and maintain Workers’

Compensation insurance for statutory requirements and employers’ liability limits of at least

$1,000,000 each accident and $1,000,000 each employee, $1,000,000 policy limit for disease,

and shall be responsible for ensuring that any subcontractor has statutory coverage. City need

not be named as an Additional Insured, but a subrogation waiver endorsement is required.

(H) Liability Notwithstanding Insurance: Approval, disapproval or failure to act by Owner

regarding any insurance supplied by Design/Builder or its Subcontractors shall not relieve

Design/Builder of full responsibility or liability for damages, errors, omissions or accidents as

set forth in this Contract. The bankruptcy or insolvency of Design/Builder’s insurer or any

denial of liability by Design/Builder’s insurer shall not exonerate Design/Builder from the

liability or responsibility of Design/Builder as set forth in this Contract.

ARTICLE 23

SURETY BONDS

(A) Performance Bond and Payment Bond: After the City’s issuance of the Notice to

Proceed, and before the start of the “Work,” Design/Builder shall furnish to Owner a separate

Public Construction Bond in the penal sum of 100% of the GMP amount. The bonds shall be

written by a corporate surety or sureties authorized to conduct an insurance business in the

State of Florida and licensed to issue surety bonds in the State of Florida, and otherwise

acceptable to Owner. The bonds shall conform to the format and requirements of Florida

Statute §255.05 (as security for the faithful performance of the payment of all bills, and

obligations arising from the performance of the Contract).


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ARTICLE 24

NON-DISCRIMINATION

(A) General: As a condition of this Contract, Design/Builder covenants that Design/Builder

will take all necessary actions to insure that, in connection with any work under this Contract,

Design/Builder, his associates and subcontractors, will not discriminate in the treatment or

employment of any individual or groups of individuals on the grounds of race, color, religion,

national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly

or through contractual or other arrangements. Design/Builder shall also comply with all

applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213, as

amended. In this regard, Design/Builder shall keep, retain and safeguard all records relating

to this Contract or work performed hereunder for a minimum period of three (3) years from

final Contract completion, with full access allowed to authorized representatives of Owner,

upon request, for purposes of evaluating compliance with this and other provisions of the

Contract.

ARTICLE 25

MISCELLANEOUS PROVISIONS

(A) Governing Law; Venue: This Contract shall be governed by and construed in accordance

with the laws and court decisions of the State of Florida, without regard to conflict of law or

choice of law principles of Florida or of any other state. This Contract is performed in Marion

County, Florida, and exclusive venue for the enforcement of rights or legal obligations under

this Contract shall be in Marion County, Florida.

(B) Successors And Assigns: This Contract shall be binding upon and inure to the benefit

of the parties to this Contract and their respective successors and, except as otherwise

provided in this Contract, their assigns.

(C) Non-Assignment: Design/Builder shall not assign this Contract, or any part of this

Contract, without the prior written consent of Owner.

(D) Notices: Any notice, payment, statement, or demand required or permitted to be given

under this Contract by either party to the other may be effected by personal delivery in writing

or by mail, postage prepaid. Mailed notices shall be addressed to the parties at the addresses


45

appearing below, but each party may change its address by written notice in accordance with

this section. Mailed notices shall be deemed communicated as of three (3) days after mailing.

If intended for Owner, to: Tiffany Kimball, Contracting Officer

City of Ocala

110 SE Watula Ave, 3rd FL

Ocala, FL 34471

PH: 352-629-8366

E-Mail: [email protected]

With a copy to: Patrick G. Gilligan, Esquire

Gilligan, Gooding & Franjola, P.A.

1531 SE 36th Avenue

Ocala, FL 34471

PH: 352-867-7707

FX: 352-867-0237

E-Mail: [email protected]

If intended for Design/Builder, to: Contact Name

Company

Street Address

City, State, ZIP

PH: XXX-XXX-XXXX

CELL: XXX-XXX-XXXX

E-Mail:

(E) Severability: In the event that any portion or any portions of this Contract are held to

be unenforceable by a court of competent jurisdiction, then the remainder of this Contract

shall be enforced as though such portions had not been included, unless to do so would

cause this Contract to fail of its essential purposes.

(F) Counterparts: This Contract may be executed in any number of counterparts, each of

which shall be deemed an original and constitute one and the same instrument. If this Contract

mailto:[email protected]



46

is executed in counterparts, then it shall become fully executed only as of the execution of

the last such counterpart called for by the terms of this Contract to be executed.

(G) Attorneys’ Fees: If any civil action, arbitration or other legal proceeding is brought for

the enforcement of this Agreement, or because of an alleged dispute, breach, default or

misrepresentation in connection with any provision of this Agreement, the successful or

prevailing party shall be entitled to recover reasonable attorneys' fees, sales and use taxes,

court costs and all expenses reasonably incurred even if not taxable as court costs (including,

without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate,

bankruptcy and post-judgment proceedings), incurred in that civil action, arbitration or legal

proceeding, in addition to any other relief to which such party or parties may be entitled.

Attorneys' fees shall include, without limitation, paralegal fees, investigative fees,

administrative costs, sales and use taxes and all other charges reasonably billed by the attorney

to the prevailing party.

(H) JURY WAIVER. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER

AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATES TO THIS

AGREEMENT, ANY AND ALL TRANSACTIONS CONTEMPLATED HEREUNDER, THE

PERFORMANCE HEREOF, OR THE RELATIONSHIP CREATED HEREBY, WHETHER SOUNDING IN

CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF

COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY

WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. NEITHER PARTY HAS MADE OR RELIED

UPON ANY ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE

ENFORCEABILITY OF THIS PROVISION. EACH PARTY HAS READ AND UNDERSTANDS THE

EFFECT OF THIS JURY WAIVER PROVISION.

(I) Force Majeure. Neither party shall be responsible for damages or delays caused by

Force Majeure or other events beyond the reasonable control of the party and which could

not reasonably have been anticipated or prevented. For purposes of this Agreement, Force

Majeure includes, but is not limited to, adverse weather conditions, floods, epidemics, war,

riot, lockouts, and other industrial disturbances; unknown site conditions, accidents, sabotage,

fire loss of or failure to obtain or delay in obtaining permits or other jurisdictional approvals,

unavailability of labor, materials, fuel, or services; court orders; acts of God; acts, orders, laws,

or regulations of the Government of the United States or the several states, or any foreign

country, or any governmental agency. In the event that Force Majeure occurs, the parties


47

shall mutually agree on the terms and conditions upon which services may continue.

(J) Electronic Signatures. Design/Builder, if and by offering an electronic signature in any

form whatsoever, will accept and agree to be bound by said electronic signature to all terms

and conditions of this agreement. Further, a duplicate or copy of the agreement that contains

a duplicated or non-original signature will be treated the same as an original, signed copy of

this original agreement for all purposes.

(K) Captions: The captions to the various clauses of this Contract are for informational

purposes only and shall not alter the substance of the terms and conditions of this Contract.

(L) Entire Agreement; No Oral Modifications: This Contract (with all referenced Exhibits,

attachments, and provisions incorporated by reference) embodies the entire agreement of

both parties, superseding all oral or written previous and contemporary agreements between

the parties relating to matters set forth in this Contract. Except as otherwise provided

elsewhere in this Contract, this Contract cannot be modified without written supplemental

agreement executed by both parties.

(M) COMPLIANCE WITH F.S. 287.135*, applicable on goods or services of $1,000,000 or

more:

As an authorized agent and/or representative of the applying/contracted company, I hereby

certify that the applying/contracted company:

[ ] Is NOT on the Scrutinized Companies that Boycott Israel List, created pursuant to F.S.

215.4725, or is engaged in a boycott of Israel as defined therein;

[ ] Is NOT on the Scrutinized Companies with Activities in Sudan List or the Scrutinized

Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to F.S.

215.473;

[ ] Is NOT engaged in business operations, as defined by F.S. 287.135, in Cuba or Syria;

[ ] Agrees that any resulting contract may be terminated by the City if:

1. Any of the representations above are found to be false.

2. The applying/contracted company is placed on the Scrutinized Companies that

Boycott Israel List, or is engaged in a boycott of Israel, as defined above;


48

3. Has been placed on the Scrutinized Companies with Activities in Sudan List or the

Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, as

defined above; or

4. Has been engaged in business operations in Cuba or Syria.

SIGNATURE of authorized agent or representative of the applying/contracted company:

___________________________________________________________

Company Name

*F.S. 287.135 obligates the City to ensure that all contracts for goods or services of $1 million

or more include provisions as required by that statute. The City acknowledges, however, that

the enforcement of these provisions may in certain circumstances create conflict with

applicable federal law. Regardless, the enforceability of this provision “COMPLIANCE WITH F.S.

287.135” shall not impact the force and effect of any other provisions of this contract and

shall accordingly be severable and distinct from the remainder of this contract should a court

of law invalidate the statute or its inclusion in this Agreement.

(N) PUBLIC RECORDS. The Design/Builder shall comply with all applicable provisions of the

Florida Public Records Act, Chapter 119, Florida Statutes. Specifically, the Design/Builder shall:

A. Keep and maintain public records required by the public agency to perform the service.

B. Upon request from the public agency’s custodian of public records, provide the public

agency with a copy of the requested records or allow the records to be inspected or

copied within a reasonable time at a cost that does not exceed the cost provided in

this chapter or as otherwise provided by law.

C. Ensure that public records that are exempt or confidential and exempt from public

records disclosure requirements are not disclosed except as authorized by law for the

duration of the contract term and following completion of the contract if the

Design/Builder does not transfer the records to the public agency.

D. Upon completion of the contract, transfer, at no cost, to the public agency all public

records in possession of the Design/Builder or keep and maintain public records

required by the public agency to perform the service. If the Design/Builder transfers

all public records to the public agency upon completion of the contract, the


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Design/Builder shall destroy any duplicate public records that are exempt or

confidential and exempt from public records disclosure requirements. If the

Design/Builder keeps and maintains public records upon completion of the contract,

the Design/Builder shall meet all applicable requirements for retaining public records.

All records stored electronically must be provided to the public agency, upon request

from the public agency’s custodian of public records, in a format that is compatible

with the information technology systems of the public agency.

IF THE DESIGN/BUILDER HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

DESIGN/BUILDER’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO

THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:

CITY OF OCALA, OFFICE OF THE CITY CLERK; 352-629-8266; E-mail:

[email protected]; City Hall, 110 SE Watula Avenue, Ocala, FL 34471.

(O) LEGAL AUTHORITY. Each person signing this Agreement on behalf of either party individually

warrants that he or she has full legal power to execute this Agreement on behalf of the party

for whom he or she is signing, and to bind and obligate such party with respect to all

provisions contained in this Agreement.

EXECUTED as of the ___th day of _______, 2018, by Owner, signing by and through its City

Council, and by Design/Builder, acting through its duly authorized officials.

Attest: CITY OF OCALA

__________________________________ ______________________________________

Angel B. Jacobs, City Clerk Matthew J. Wardell, Council

President



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Approved as to form and legality: COMPANY NAME

_______________________________________ _____________________________________

Patrick G. Gilligan, City Attorney Vice-President or Higher,

or Managing Partner